Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapter 13B, 160.380, 161.010-161.100, 161.120,
218A.010
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
161.028(1) authorizes the
Education Professional Standards Board (EPSB) to establish standards and
requirements for obtaining and maintaining an educator's certificate; revoke,
suspend, or refuse to issue or renew a certificate; impose probationary or
supervisory conditions upon a certificate; issue a written reprimand or
admonishment; or any combination of those actions regarding any certificate
issued to Kentucky certified educators for reasons delineated in
KRS
161.120(1).
KRS
161.175(2) authorizes the
EPSB to promulgate administrative regulations requiring an educator whose
certificate has been suspended or revoked by the EPSB because the educator
engaged in misconduct involving the illegal use of controlled substances to
submit to drug testing. This administrative regulation identifies the
conditions for initiating a disciplinary action against an educator's
certificate and establishes procedures for certificate reinstatement,
reissuance, and application denial.
Section
1. Purpose.
(1) In order to
support the mission of the EPSB, the EPSB may take action against an educator's
certificate in an effort:
(a) To ensure that
an educator has an understanding of an educator's professional duties and
responsibilities; and
(b) To
protect students, parents of students, school personnel, or school
officials.
(2) The EPSB
may take action against any certificate issued under
KRS
161.010 to
161.100
for any of the reasons set forth in
KRS
161.120(1).
Section 2. Complaints and Reports.
(1) A complaint may be made by any person,
organization, or entity. The complaint shall be in writing and shall be signed
by the person offering the complaint. The complaint shall be sent to the EPSB
and contain:
(a) The name, phone number, and
address of the person making the complaint, and the name of the educator
against whom the complaint is made. If known, the person making the complaint
shall include the address of the school district where the educator works;
and
(b) A clear and concise
description of the issues of fact.
(2) A report shall be sent to the EPSB by
superintendents of local school districts pursuant to
KRS
161.120(2)(a).
(a) A superintendent's duty to report shall
include the reporting of criminal convictions discovered by the district
pursuant to
KRS
160.380, even if the conviction occurred
prior to the date the educator's certification was issued.
(b) The superintendent shall have thirty (30)
days from the date the superintendent receives notice of the criminal
conviction to report that criminal conviction to the EPSB pursuant to
KRS
161.120(2)(a).
(c) Failure of the superintendent to provide
the full facts and circumstances or to forward copies of all relevant documents
and records in the superintendent's possession pursuant to 161.120(2)(b), may
result in action against the superintendent's certificate pursuant to
161.120(1)(j).
(d) The
superintendent shall supplement the report in writing within thirty (30) days
of the superintendent receiving the additional information or supporting
documentation.
(3) EPSB
staff shall do an initial review of all complaints and reports to determine
whether there is sufficient credible evidence that a violation of
KRS
161.120(1) may have
occurred. If the report or complaint contains sufficient credible evidence that
a violation of
KRS
161.120(1) may have
occurred, EPSB staff shall open a file and assign that file a number.
(a) The EPSB staff shall send a copy of these
complaints and reports by certified mail to the educator's address on file with
EPSB.
(b) The educator shall have
the right to file a rebuttal with the EPSB within thirty (30) calendar days
from the date the educator receives the complaint or report from the EPSB
unless the parties agree to extend that deadline.
(c) EPSB staff shall add the case to the
EPSB's docket and prepare the file for EPSB review by redacting all the
educator's identifiers if one (1) of the following occurs:
1. The educator's rebuttal is
received;
2. The notice is returned
as undeliverable; or
3. The
educator:
a. Fails to file a rebuttal with the
EPSB; and
b. Has not requested to
extend the thirty (30) day deadline.
(d) The EPSB shall determine whether the
nature and quality of the alleged violation warrants deferral, dismissal,
training, admonishment, further investigation, or initiation of a
hearing.
(e) In making its
determination, the EPSB shall consider if the allegation, if proven, would
warrant sanction by the EPSB.
(f)
When making a determination as to the level of sanctions warranted, the EPSB
shall consider the following factors:
1. The
seriousness of the alleged violation;
2. Whether the alleged violation was
premeditated or intentional;
3.
Whether an attempt to conceal the alleged violation was made;
4. Whether there were any prior
violations;
5. Whether training is
appropriate to prevent further violations;
6. Whether the sanction is necessary to deter
future violations; or
7. Other
relevant circumstances or facts.
(4)
(a) If
the EPSB determines that sanctions are warranted, the EPSB shall refer the
matter to hearing.
(b) If the EPSB
refers the matter to hearing, the EPSB shall, by majority vote, approve the,
issuance of a notice of hearing and the statement of charges. The statement of
charges shall include specific reasons for the EPSB's proposed action,
including the:
1. Statutory or regulatory
violation;
2. Factual basis on
which the disciplinary action is based; and
3. Penalty sought.
(c) The parties may agree to resolve the
matter informally at any time, in accordance with
KRS
161.120(8). Any agreement to
resolve the matter shall be memorialized in an agreed order. To be valid, the
agreement shall be approved by the EPSB. The agreed order shall be signed by
the educator, the educator's attorney, if any, and the EPSB chair.
(d) The EPSB staff shall initiate the hearing
process, in accordance with KRS Chapter 13B, within thirty (30) days after the
EPSB refers the matter to hearing.
Section 3.
(1) The hearing shall be held in accordance
with KRS Chapter 13B.
(2) Either
party may be entitled to a reasonable continuance of the hearing date for good
cause.
(3) The educator has the
right to request a private in-person hearing, in accordance with
KRS
161.120(5)(b).
(a) The educator shall waive the right to a
private in-person hearing if the educator fails to specifically make a written
request for a private in-person hearing at least five (5) days prior to the
hearing.
(b) Even if the educator
elects to proceed with a private, in-person hearing, the hearing transcript for
that hearing shall be subject to disclosure after the EPSB issues its final
order unless exempt from disclosure by law.
(c) All hearings shall be conducted in the
office of the EPSB unless a new location is agreed upon by the
parties.
(4) The hearing
officer's recommended order shall include a discussion of the factors set forth
in Section 2(3)(f) of this administrative regulation if recommending
sanctions.
(5) A party may file any
exceptions to the recommended order within fifteen (15) calendar days from the
date the recommended order is mailed.
(a) This
time limit shall not be extended, and responses to exceptions shall not be
considered by the EPSB.
(b) Any
disagreement with a factual finding or conclusion of law in the recommended
order not contained in the exceptions shall be waived.
Section 4. Final Decision.
(1) The EPSB may delegate to the EPSB chair
the authority to sign a decision made or order issued under this section on
behalf of a majority of the EPSB members.
(2) After the EPSB chair certifies that a
quorum is present, a majority of the voting members present shall be required
to make a final decision on the recommended order, agreed order, or request for
the issuance of an order of default judgment.
(3) In making a final order in accordance
with
KRS 13B.120, the EPSB
shall consider the record including the recommended order and any exceptions
filed.
Section 5.
Procedure for Suspension, Surrender, or Revocation of a Certificate.
(1) When the EPSB issues a final decision,
the EPSB staff shall mail a copy of the final decision to the educator by
certified mail using the address the educator provided to the EPSB, or any
other means permitted by law.
(2) A
record of EPSB action shall become part of the educator's official records
maintained by EPSB staff.
(3)
Immediately following the issuance of the EPSB final decision, the EPSB staff
shall notify the reporting parties of the action taken.
(4) EPSB staff shall also ensure that the
suspension, surrender, or revocation is noted on EPSB's Web site.
(5) EPSB staff shall also ensure that the
information is provided to the National Association of State Directors of
Teacher Education and Certification (NASDTEC) for inclusion in the NASDTEC
Clearinghouse, which is a searchable database administered by NASDTEC relating
to educator certification and discipline.
Section 6. Procedure for Reinstatement of a
Suspended Certificate.
(1) Reinstatement of a
suspended certificate for reasons other than misconduct involving the illegal
use of controlled substance as defined in
KRS
218A.010 shall be subject to the following
requirements:
(a) A certificate that has been
suspended by the EPSB shall not be reinstated until the certificate holder has
met all conditions and requirements ordered by the EPSB.
(b) If a certificate lapses during a period
of suspension, the certificate holder shall apply for renewal of the
certificate at the end of the suspension period. The EPSB shall renew the
certification if the certificate holder has met all educational requirements
for renewal and has completed all of the conditions and requirements ordered by
the EPSB.
(c) The burden to
initiate the process to reinstate a suspended certificate shall be on the
certificate holder.
1. If the suspension does
not include conditions, the EPSB staff shall remove all references of the
suspension from the Web site at the conclusion of the suspension
period.
2. If the suspension
includes conditions, the certificate holder shall provide the EPSB proof that
all conditions have been met.
a. The EPSB
shall reinstate the certificate at the conclusion of the suspension period once
the EPSB receives evidence from the certificate holder demonstrating that the
conditions of suspension were met.
b. The EPSB shall remove from its Web site
any reference to the suspension once the certificate holder has provided
evidence that the conditions of suspension have been met.
(d) The record of suspension as
well as reinstatement of the certification shall become part of the educator's
official certification records, but the record of suspension shall not be
referenced on any certificate subsequently issued to the certificate
holder.
(2) Reinstatement
of a suspended certificate for misconduct involving the illegal use of
controlled substance as defined in
KRS
218A.010 shall be subject to the following
requirements:
(a) In addition to conditions
for reinstatement of a suspended certificate established in subsection (1) of
this section, the certificate holder shall provide written evidence that the
certificate holder has submitted to a drug test at the certificate holder's own
expense administered by a drug testing facility approved by the EPSB within
thirty (30) days of reinstatement.
(b) The certificate holder shall arrange for
the drug testing facility to send the results of the drug test directly to the
EPSB.
(c) A certificate holder
subject to the terms of this subsection may petition the EPSB to approve a drug
testing facility of the certificate holder's choice.
1. Petition to Approve Drug Testing Facility.
The petition shall contain the following information:
a. The drug testing facility's name and
location;
b. The name and telephone
number for the director of the facility;
c. The method of test specimen
collection;
d. The drug testing
facility's method of assuring identity of the test subject;
e. Procedures for testing specimens,
including forensic testing methods; and
f. Chain of custody protocols.
2. The drug testing facility shall
test at a minimum for the following named controlled substances:
a. Marijuana;
b. Cocaine;
c. Opiates;
d. Amphetamines;
e. Phencyclidene;
f. Morphine;
g. MDMA (Ecstasy);
h. Methadone;
i. Benzodiazepines;
j. Barbiturates; and
k. Oxycodone.
(d) If the results of the drug test indicate
illegal drug use by the certificate holder, the certificate shall not be
reinstated.
Section
7. Procedure for Reissuance of a Certificate after Revocation.
(1) If revocation was for reasons other than
misconduct involving the illegal use of controlled substance as defined in
KRS
218A.010, the conditions established in this
subsection shall apply.
(a) The former
certificate holder shall complete the same application that all educators in
Kentucky shall complete to obtain certification.
(b) The former certificate holder shall bear
the burden of proving that the certificate holder is fit for
practice.
(c) The former
certificate holder shall satisfy all current educational requirements for the
certificate sought.
(d) The EPSB
may include terms and conditions that the EPSB reasonably deems appropriate as
a condition of reissuance in accordance with
KRS
161.120(11)(b) if reissuing
the certificate.
(2) If
revocation was for misconduct involving the illegal use of controlled substance
as defined in
KRS
218A.010, the former certificate holder
shall:
(a) Comply with the requirements
established in Section 6(1) of this administrative regulation; and
(b) Submit to drug testing as established in
Section 6(2) of this administrative regulation.
(3) Regardless of the reason for the
revocation, the revocation shall be noted on the certificate that is issued and
shall remain on the EPSB Web site.
Section 8. Denial of Application for a
Certificate. If the EPSB denies an individual's application for a Kentucky
certificate pursuant to this administrative regulation, the applicant may file
an appeal in accordance with
KRS
161.120(5)(a) 2.
Section 9. Motion to Reconsider.
(1) In accordance with
KRS
161.120(9), the EPSB may
reconsider, modify, or reverse its decision of its own volition.
(2) Under exceptional circumstances, the EPSB
may reconsider, modify or reverse its decision on any disciplinary matter upon
a motion by one (1) of the parties.
STATUTORY AUTHORITY:
KRS
161.028(1),
161.120(1),
161.175(2)